Blog

14/11/18
A new consultation has been published by the Ministry of Justice looking at radically overhauling the legal requirements for divorce in England & Wales. The consultation is running until 10th December 2018.

There is currently a Bill before Parliament looking at the financial provision within divorce and together with the recent high profile case of Owens v Owens it has highlighted the outdated nature of the legal process on divorce.

The current law in England and Wales – which has remained unchanged for fifty years –sets requirements which can themselves introduce or aggravate conflict, and which encourage a focus on the past, rather than on making arrangements for the future.

The Government believes there is now broad consensus that the current divorce process does not serve the needs of a modern society. Difficulties with the current law have also been highlighted recently before the Supreme Court. In particular, the current divorce process is complicit in exposing children to the damaging impact of ongoing adult conflict during, and too often after, the process. While the wider family justice system is focused on helping people to resolve family issues in a non-confrontational way, the legal divorce process can make this more difficult because of the way it incentivises the attribution of what is perceived as blame. Parents in particular, who need to continue to work together in their children’s bests interests, may struggle to overcome feelings of hostility and bitterness caused by the use of “fault” to satisfy a legal process.

Under the current requirements, couples must either live apart for a substantial period of time before a divorce can be obtained, or else one spouse must make allegations about the other spouse’s conduct. This is sometimes perceived as showing that the other spouse is “at fault”. Three out of five people who seek divorce make allegations about the other spouse’s conduct. Both routes can cause further stress and upset for the divorcing couple, to the detriment of outcomes for them and any children. There have been wide calls to reform the law to address these concerns, often framed as removing the concept of “fault”.

Marriage is a solemn commitment, and the process of divorce should reflect the seriousness of the decision to end a marriage. The Government believes that the law should not exacerbate conflict and stress at what is already a difficult time. The Government accepts the principle that it is not in the interests of children, families and society to require people to justify their decision to divorce to the court.

The proposals
The divorce process would retain irretrievable breakdown as the sole ground for divorce but remove the current requirement for the petitioner to give evidence of conduct or separation. Instead, one or potentially both parties will petition the court with a notice of the intention to divorce. The court will no longer need to check the particulars of the evidence but will continue to check other evidential aspects of the notice to the court (for example, to make certain that the court has the jurisdiction to act, that there is a valid marriage to dissolve, and to guard against fraudulent petitions).

The court will then be able to grant a provisional decree of divorce (the decree nisi) if these other requirements are satisfied and, following an application by either party after a statutory period of time has elapsed, may ask the court to make the divorce final by granting the decree absolute, as under the current law.

The two stage process (decree nisi and decree absolute) it is proposed remains but with a change to the minimum time frame between the issue of both decrees. There is currently a minimum time frame of 6 weeks and a day between the two decrees. There are arguments for the time frame to be extended but with potentially a shorter timeframe for specific circumstances.

Another proposal is to remove the right to contest the divorce. The case of Owens v Owens is exceptional, but it does illustrate the difficult position of one spouse who, it is reported, feels legally trapped in a marriage she regards as over.

The Government believes that as a general rule it serves no purpose – whether to the parties or to the state – to keep the opportunity to contest the divorce. Most divorce petitions in practice support a one-sided account that may not reflect the real reason for the breakdown of the marriage. Few respondents want to spend time and money on contesting the particulars in the petition, especially if they agree that the marriage is over. If one party has decided that the marriage is over then, arguably, the marriage is at an end. A marriage benefits the family and society only where each party is committed to the other. Any other marriage is a marriage in name only, the “empty legal shell” in the words of the Law Commission over fifty years ago.

The responses to the consultation will be published in March 2019 and it will be interesting to see if the Financial Provisions bill is also incorporated into the reform.